How does separation affect a Will?

When separating from a spouse or partner, a common question we encounter is ‘does separation affect a Will’?

Introduction

Separating from your partner, and the process of a family law property settlement often takes considerable time. Despite the formality of these processes, is important to note that separation and family law property settlements DO NOT revoke your Will. It is only in the event of a divorce that separation will have an effect on your Will.

In the event you do separate from your partner it is unlikely that you will want your ex-partner to benefit from your Will, or be the person in charge of administering your estate. If this is the case, it is essential to update your Will as soon as possible to reflect your change in circumstances. If you fail to do so, and you pass away unexpectedly, your separated partner may inherit the share of your estate that you have left to them in your Will, regardless of your current wishes.

How does divorce affect a Will?

Divorce on the other hand, does have a binding effect on your existing Will. In Victoria, when divorcing your spouse, the following provisions in your Will are revoked and become void:

  1. Any gift or bequest to your divorced spouse,
  2. The granting of a power of appointment (other than a power of appointment exercisable by your divorced spouse in favour of persons who are also children of your divorced spouse), and
  3. Any appointment of your divorced spouse as an executor, trustee or guardian (other than as trustee of property left for beneficiaries who are also children of your divorced spouse).

Notwithstanding the effect of the divorce, you can still give or bequeath part of your estate to your divorced spouse, and appoint your divorced spouse as an executor, trustee or guardian. To ensure that there are no issues when the time comes to administer your estate, it is advisable that your Will includes clear instructions that such gift or appointment remains valid, notwithstanding your divorce.

How can Sharrock Pitman Legal assist me?

If you have any queries regarding the validity of your Will, or if you think you could benefit from updating your Will, please do not hesitate to contact us. Please feel free to call our Wills & Estates team on 1300 205 506 or alternatively fill in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

For further information contact  
Melinda Van Rooyen

Melinda Van Rooyen is a lawyer in our Wills & Estates team. Melinda can be contacted on (03) 8561 3311 or email melinda@sharrockpitman.com.au.

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